IN THE CASE OF:	  

		BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120006276 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests a review of his physical evaluation board (PEB).  In effect, he requests correction of his records to show he was found medically unfit for duty instead of fit for duty by the September 2000 PEB. 

2.  The applicant states:

* he submitted medical documentation to the medical evaluation board (MEB) while at Fort Stewart, GA and waited for an appointment
* he was never notified of an appointment; yet, he received a letter stating he missed his appointment
* when he ultimately showed up for his appointment, he did not complain about the right thing; the PEB stated he was fit for duty
* he is now receiving a 60-percent (60%) service-connected disability from the Department of Veterans Affairs (VA)

3.  The applicant provides a copy of his VA rating decision. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 26 February 1986 and he held military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.  

3.  On 23 July 1999, the applicant was issued a permanent physical profile for mechanical lower back pain.  

4.  On 24 May 2000, the applicant's immediate commander rendered a performance evaluation statement regarding the applicant.  He stated:

* The applicant had been working as a range control sergeant for the past 2 years
* He was working outside his MOS due to medical profile limitations
* His physical profile did not hinder him from performing his duties
* He had an imposed bar to reenlistment which prevented reclassification

5.  After having complained of low back pain, he underwent a physical examination on 19 July 2000 at Fort Stewart, GA.  His narrative summary shows;

	a.  He began having low back problems in April 1996.  He was diagnosed with mechanical lower back pain, given medications, and was issued a temporary physical profile.  X-rays were conducted a few days later and showed minimal narrowing of the L4-L5 disc space.  Otherwise, he was normal. 

	b.  Between April 1996 and August 1998, he continued to be intermittently symptomatic with waxing and waning symptoms of lower back pain.  He continued to function and perform his duties.  He was also seen on numerous occasions by a chiropractor.  In August 1998, he was seen at the local troop medical clinic for back pain brought on by lifting heavy furniture and equipment.  He was again prescribed medication and asked to follow-up.  

	c.  He was again seen in September 1998 after complaining of continued back pain.  He was referred to physical therapy.  A magnetic resonance imagining (MRI) was conducted and showed his symptoms had largely resolved and he was asymptomatic.  Furthermore, in December 1998, he was issued an orthopedic surgery referral and had another MRI ordered. 

	d.  In January 1999, the MRI of the lumbar spine revealed degenerative disc disease but no evidence of any disc herniation or herniated nucleus pulposis.  He was further seen in February 1999 at the orthopedic clinic and he was ultimately issued a permanent physical profile in July 1999.

	e.  His physical examination revealed positive tenderness to palpation in the midline lumbosacral region and some paraspinous muscle tenderness.  He had some discomfort on standing, lateral shoulder rotation, and axial loading.  He had appositive straight leg raise bilaterally at 45 degrees, approximately 0 to 90 degrees of flexion, and 0 to 100 degrees of extension limited by discomfort.  His examination revealed no swelling, discoloration, or deformity.   

	f.  His final diagnosis was that of chronic mechanical lower back pain which did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  He was recommended for entry into the physical disability evaluation system (PDES).

6.  On 30 August 2000, he was notified by letter that during a review of his file by Headquarters, Department of the Army (HQDA), the Calendar Year 1999 Sergeant First Class Promotion/Selection Board considered his record of service, including his performance and future potential.  As a result of this review, HQDA imposed a bar to reenlistment against him under the Qualitative Management Program (QMP).  He was also advised of his options and rights.  

7.  On 13 September 2000, an MEB convened at Winn Army Community Hospital, Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of chronic mechanical lower back pain.  The MEB recommended his referral to a PEB.  He was counseled and agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

8.  On 21 September 2000, an informal PEB convened in Fort Sam Houston, TX. The PEB determined that based on the objective medical and personnel evidence of record and considering the physical requirements for reasonable performance of duties required by grade and military specialty, the PEB found him fit for duty within the limitations of his profile.  The PEB noted that the applicant's medical problem did not preclude him from the performance of his current duties.  

9.  He elected not to concur with the PEB's findings and recommendation and submitted a rebuttal.  In his rebuttal, dated 28 September 200, he stated:

* He could not perform the 12-mile road march
* Although the doctors did not restrict him from doing sit-ups, he did so with excruciating pain with no alternate event
* He had trouble walking and standing at times
* He had back pain when he stood up, bent, or did heavy lifting
* He had not been working in his MOS due to back problems
* The therapy did not help
* The MRI revealed a narrowing of the L4-L5
* His problems occurred while in the military

10.  On 2 October 2000, after considering his rebuttal, the President of the PEB responded to the applicant and stated the applicant did not provide any new objective medical information or performance data that justified a change to the informal PEB decision.  The PEB believed he could execute the duties without imposing unreasonable requirements on the Army to maintain his health or protect him.

11.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of rights at each step of the process.  His counseling culminated on 5 October 2000 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  An official of the U.S. Army Physical Disability Agency approved the PEB on behalf of the Secretary of the Army. 

12.  As the applicant had a Department of the Army imposed bar to reenlistment, he was honorably discharged on 11 November 2000 by reason of completion of his required active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 14 years, 8 months, and 16 days of active service during this period.  

13.  He submitted his VA rating decision which shows the VA awarded him service-connected disability compensation for degenerative disc disease of the cervical spine, arthritis of the right toe, bilateral pes planus, and stomach cramps. 

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30% and Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20% of service and a disability rating at less than 30%.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant complained of low back pain.  He was treated at various stages throughout his military career with medications, physical therapy, and referrals to specialists.  His low back pain persisted.  He ultimately underwent an MEB that referred him to a PEB.  

2.  The PEB determined that based on the objective medical and personnel evidence of record and considered the physical requirements for reasonable performance of duties required by grade and military specialty and found him fit for duty within the limitations of his profile.  The PEB noted that his medical problem did not preclude him from the performance of his current duties.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and found him physically fit.

3.  He submitted a rebuttal but he did not provide any new objective medical information or performance data that justified a change to the informal PEB decision.  The PEB believed he was able to execute the duties required of his grade and military specialty.  As such, his appeal was denied and the PEB's findings and recommendation were affirmed. 

4.  There is insufficient evidence that shows his low back pain rendered him physically unfit or unable to perform the duties required by his grade or military specialty.  His commander certified that he was performing satisfactorily in his position at the time and his physical profile did not prohibit an alternate event of the Army physical fitness test. 

5.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

6.  When identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  

7.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case or that would justify a change to the PEB findings and recommendation.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120006276





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ABCMR Record of Proceedings (cont)                                         AR20120006276



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